Sinha v General Medical Council

A criminal acquittal does not prevent a professional regulator from investigating the same conduct. Criminal and disciplinary proceedings serve different purposes, even where the acquittal followed a ruling that a fair criminal trial was impossible. The decisive question is whether the disciplinary hearing itself was fair and Article 6 compliant. A tribunal may assess witness credibility afresh and determine allegations involving collusion or contamination, despite gaps in police records, provided the practitioner has a fair opportunity to challenge the evidence. On a second appeal, the stringent test under the Access to Justice Act 1999 must also be satisfied.

The General Medical Council’s Fitness to Practise Panel found that Dr Sinha had committed serious professional misconduct through sexual behaviour towards female patients and directed that his name be erased from the medical register on 12 December 2006. His criminal prosecution for indecent assault had ended in a directed acquittal after the Crown Court judge concluded that a fair trial was impossible because of defects in the police investigation. The Panel nevertheless proceeded, heard evidence, and found most allegations proved. Irwin J dismissed his appeal on 4 July 2008. Arden LJ refused permission on paper on 10 November 2008. The central issue was whether the acquittal or the investigation defects made the disciplinary proceedings unfair and whether a second appeal had any proper basis.

Disposition. The renewed application for permission to appeal was refused.

1. Second appeal. This was a second appeal. Under section 55(1) of the Access to Justice Act 1999, the applicant had to show an important point of principle or practice or some other compelling reason to hear the appeal. The burden was stringent. The Court of Appeal’s function was limited and it did not conduct a re-rehearing or hear evidence.
2. Different functions. Criminal proceedings determine criminal guilt for the purposes of punishment or acquittal. Professional disciplinary proceedings determine whether a practitioner has fallen below professional standards and should remain in the profession. An acquittal therefore was not conclusive in disciplinary proceedings, including an acquittal directed because the criminal defendant could not receive a fair trial.
3. Fairness and Article 6. The relevant question was whether the Fitness to Practise Panel’s own procedure was fair and Article 6 compliant. Dr Sinha was represented, the complainants were cross-examined, he gave evidence for an extended period, and the Panel assessed the allegations and witnesses in detail. The Panel was aware of the criminal proceedings and the concerns about contamination, collusion and missing records.
4. Stay and outcome. On the facts, those concerns did not require a stay. A coherent application for a stay would properly have failed. The Panel was entitled to proceed, conducted the hearing fairly, and reached a result plainly open to it. Irwin J made no error of law, and a further appeal had no reasonable prospect of success.

Procedural history

• Court of Appeal (Civil Division) — renewed application for permission to appeal refused: [2009] EWCA Civ 80.
• Court of Appeal, Arden LJ — permission to appeal refused on paper on 10 November 2008.
• High Court, Irwin J — appeal against the Fitness to Practise Panel’s determination dismissed on 4 July 2008.
• GMC Fitness to Practise Panel — directed erasure of Dr Sinha’s name from the medical register on 12 December 2006.